One of the most efficient ways in the discrimination context to show that an employer’s stated reason for termination is false is showing that it has changed its reason for termination. The applicable case law calls these shifting reasons, and it is a powerful tool in your journey to getting a case to trial.

Absent direct evidence of discrimination, as are most cases, employees are left with having to maneuver one of the multiple iterations of the McDonnell Douglas burden-shifting framework. In its most basic form, the McDonnell Douglas burden-shifting framework is stands for the requirement that an employee must first prove a prima facie case, which are the barest elements of a discrimination claim. After that, the employer puts forth a non-discriminatory reason for why it took the adverse action. Finally, the employee must respond by showing that the employer’s reason is false. In this blog I would like to address one of the best methods of satisfying this last prong. Specifically, I would like to delve into using an employer’s multiple stated reasons, or shifting reasons, for termination to satisfy the requirement of pretext.

To illustrate this point, I would like to provide an example. Let’s say that an employee is terminated. At the time he is terminated he is informed of his termination his boss orally informs him that it is because of his excessive late arrivals. Subsequently, he receives a formal letter informing him that he was terminated for excessive late arrivals and several performance issues that were never brought up to his attention. At the EEOC stage, the company informs the EEOC that the employee was terminated because of performance issues and absenteeism. At this point we have three different and distinct reasons for termination. Under Fifth Circuit precedent this would be enough to establish that the employer is lying.

That is because shifting and changing reasons for an adverse employment action allow a jury to find that the stated reason is false. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 415 (5th Cir. 2007). In Burrell, the employer gave several reasons as to why the employee was not promoted. At first it stated that the plaintiff in that case was not promoted because he lacked “purchasing experience.” Then the employer stated that he was not promoted because he did not have “purchasing experience in the bottling industry.” Finally, the employer stated that the plaintiff was not promoted because the employee did not have “bottling experience.”

The Fifth Circuit in Burrell held that while similar, these reasons were sufficiently different that a jury could find that the employer’s stated reason for failing to promote the plaintiff was false. Specifically, the court held that “[t]his unexplained inconsistency was further evidence from which a jury could infer that Dr. Pepper’s proffered rationale is pretextual.”

Applying the above cited case law to the example I gave; it is clear that a court would be hard pressed to find against an employee with regards to the pretext prong. The reason for this is that Burrell establishes that even if the reasons look similar, the shifting of the reason why someone was the subject of an adverse action allows a reasonable juror to find that the reason is false. And this makes sense because in our everyday life we often hesitate to believe an individual who is unable to keep their story straight or stay consistent.

It has become common place that the most contentious area in the road to a jury trial is the pretext stage. In fact, I am of the opinion that most cases often are won or lost at this stage. This combined with the often times over formalistic lens that courts view the case using the McDonnell Douglas burden-shifting framework makes it so that it is of the utmost importance that you retain an attorney that specializes in employment law. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. Moreover, given the short statute of limitations that are often found in employment claims, time is of the essence. If you feel like you have been discriminated or retaliated against, feel free to contact us to schedule an appointment with one of our attorneys.